Court sets low ethics standard

Humphrey Bogart's "The Treasure of the Sierra Madre" left us with a line you still hear today.

Gold miner Bogart is hiding behind a rock as he's confronted by Mexican bandits who claim to be the federales, or police.

"If you're the police," Bogart demands, "where are your badges?"

"Badges?" snorts a bandit. "We don't got no badges. We don't need no badges. I don't have to show you any steenkin' badges!" Then the bandits kill Bogart and make off with his gold.

When it comes to ethics in public life, Pennsylvania's politicians and courts often act like Mexican bandits.

The politicians talk a good game, especially if there's an election coming up. But when it comes to actually establishing and abiding by the kind of strong ethical standards that the public has every reason to expect … well, they'd just as soon shoot us and steal our gold. Figuratively speaking.

What's more, when our state appellate courts have the opportunity to keep public officials in line by asserting the rule of law, they tend to side with the banditos.

The latest example emerged with the news that the state Supreme Court had concluded unanimously that former Carbon-Lehigh Intermediate Unit board member Kenneth Kistler didn't violate the state Ethics Act by outrageously mingling his board and private contracting business. The state Ethics Commission had ruled back in 2007 that Kistler violated the act. Commonwealth Court threw out the ruling, and the commission appealed to the Supreme Court.

The ensuing decision speaks volumes, not just about the dismal quality of our state courts, but about the pathetically low expectations they have for ethical behavior by public officials. Here are the basics, according to various published reports and the latest decision:

As a board member and chairman of its building committee, Kistler cast votes and engaged in discussions that paved the way for his company to win no-bid contracts to build an IU garage and classroom building. Kistler earned $58,780 in commissions for these projects.

Among other things, Kistler voted to overturn an existing classroom building lease, clearing the way for plans to construct a new building, which he subsequently was hired to build. In a pretty clear indication of the legitimacy of the board's decision, the IU later paid the owner of that existing building $350,000 to settle his lawsuit over the broken lease.

The Ethics Commission ruled that Kistler violated the act in 2002 when he voted to give architect Dale Roth the contract for the classroom building while he had "a reasonable expectation" that Roth would give him the subcontract for the transportation facility, which he was actively seeking.

A month later, the commission ruled, he violated the act again when the business he owned, Kistler Pole Building Co., entered into a subcontract to build the transportation facility for $550,492. The original job had been given to Roth's architectural firm without a public bid.

The commission said the third violation occurred two years later, when Kistler entered into a subcontract to erect the classroom building for $638,433. The contract had been awarded to Roth's businesses without public bidding.

What's amazing, as you read the Supreme Court decision, is the lengths to which the opinion's author, Justice Seamus McCaffery — who established his legal credentials by presiding over misbehaving drunks at Veterans Stadium — twists plain language to justify Kistler's behavior. His dictionary-diving labors to demonstrate that Kistler didn't "use" his position to his benefit are classic.

What's abundantly clear from this ruling is that the only way this court would find Kistler's behavior unethical would be if it had a signed confession or a recording of Kistler conspiring to turn his board position into lucrative contracts. Is this really the standard we want?

I can't read Kistler's mind, and I don't have to, although I'd have to be awfully naïve not to find the sequence of events suspicious. But whatever the intentions of the parties involved in those transactions, OUR intention — as residents of Pennsylvania and certainly as its highest court — ought to be to make it abundantly clear that our public officials must bend over backward to avoid even the appearance of mixing their public service with their private interests. At that, at the very least, Kistler failed dismally.

And our Supreme Court? Faced with an opportunity to make a statement about how the public's business should be conducted, it delivered a different message: